Graham’s vote for Kagan
When should senators confirm judges whose judicial philosophy differs from their own?
On Tuesday the Senate Judiciary Committee approved Elena Kagan’s nomination to the Supreme Court. The vote split along party lines, with the exception of South Carolina Republican Lindsey Graham, who broke rank to support Kagan’s nomination.
Graham defended his choice by saying that while he disagreed with Kagan on many issues, he felt it was his duty to support President Obama’s nomination provided she was fair and competent. The conflict raises an interesting ethical and constitutional question, should, and if so when, may Senators vote against judicial nominees on ideological grounds?
Graham justified his decision to defer to the president’s nomination in part by claiming the Constitution compelled him to do so, but this line of reasoning is far from definitive as lawyer Kirk Jenkins points out:
There’s considerable evidence that most seventeenth and eighteenth century rejections – including at least one, John Rutledge, by a Senate which counted several Founders among its members – were for political reasons.
In Graham’s defense though, until recently, senators were normally more deferential to judicial nominees; a tradition that has fallen out of favor since Robert Bork’s controversial 1987 failed confirmation.
Graham also explained that elections have consequences, and that Obama has the right to nominate a justice whose judicial philosophy is similar to his own. However, this logic could prove paradoxical for Graham’s position. For instance, conservative columnist and legal expert Ramesh Ponnuru, argues that South Carolina’s decision to elect a Republican instead of a Democrat to the Senate should have consequences as well in the nomination process.
Ponnuru makes a solid case, and considering there is no constitutional guarantee that Senators should be simply deferential to the President’s nomination, I see no solid argument for why Senators cannot vote against a nominee they see as being at extreme odds with their ideology.
That being said, it would be difficult to characterize Elenaa Kagan as some sort of radical judge. While certainly a liberal, Kagan is normally considered to be among the more moderate of Obama’s potential nominees.
Realistically, a president is not going to nominate a justice whose judicial philosophy lines up perfectly with Senators from the other party. Thus, Republicans voting against nearly any Democratic nominee and vice-versa seems somewhat pointless and only stirs up partisan flames and tensions.
In an earlier post, I argued for a cautious and moderate Supreme Court that “could be respected by citizens of differing ideologies.” Senators can play a role in this process by moderating the court by voting against nominees who are “too extreme,” but more importantly by normally deferring to the president’s nominees and thus removing some of the bitter partisanship that has surrounded the nomination process as of late.
Graham’s vote may have done just this, as Democratic Senator Dick Durbin commented that Graham has caused him to reconsider his opposition to a previous conservative Federal Court of Appeals nominee. Graham’s approach to the confirmation process strikes me as prudent method for ensuring the long-term health of our political institutions.
Photo used under a Creative Commons Attribution License by Harvard Law Review